No. 88 NAI DFA Legal Adviser's Papers

Memorandum from Michael Rynne to Joseph P. Walshe (Dublin)

Dublin, 12 December 1939

Neutrality and recruitment for belligerent armies

  • 1. Before proceeding to examine the above-indicated question, the following distinction must be made between:

    (1) The right of a neutral State to prevent belligerents from setting up recruiting offices in its territory, and

    (2) The duty, if any, of a neutral State to prevent its nationals from taking service in belligerent armies.

  • 2. International law is clear and uncontroverted in regard to the aspect of the matter mentioned first above. Not only has a neutral State the right to prevent by every means in its power the setting up of recruiting offices in its territory by a belligerent Power, but it has actually a duty to do so, vis-à-vis the enemy of such a belligerent. As this aspect does not arise at present, it is unnecessary to argue it here. The law is as stated.
  • 3. With regard, however, to the other aspect of the question, namely, the point whether citizens of a neutral State may be permitted to join belligerent armed forces, the law is not so certain. Many authorities take the strong line (e.g. Fauchille)1 that in these modern times, when mercenary armies have practically ceased to exist, a neutral State ought never to allow its citizens to enrol for service abroad. On the other hand, there is the moral weight of a Hague Convention behind the opposing view that neutrality is not affected by the enlistment in belligerent forces of a neutral's citizens. Article 6 of Convention (No. V) respecting the Rights and Duties of Neutral Powers and Persons in War on Land, signed at The Hague, 18th October, 1907, is as follows:-

    'The responsibility of a neutral Power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents'.

  • 4. It is obviously difficult to decide between the two conflicting theories referred to above. The fact that the 1907 Convention was adopted without reservation by practically all the States represented at the Hague Conference is evidence that most of them did not feel in a position to curb the zeal of neutral citizens to participate in warlike operations, provided that those citizens first of all departed from their home countries. But, alternatively, it must be recognised that if modern writers are tending to an opposite view it is because they observe a trend away from the 1907 Convention in the legislative theory and practice of modern States.
  • 5. Realistically viewed, there can be no doubt that the armies of today are very unlike those of thirty years ago. In 1907 there were comparatively few conscript armies and still a fair number of small professional ('mercenary') armies. Nowadays, with so many new States adding to the number of separate armies, the proportion of professional armies even in peace-time, has become relatively quite insignificant. When war is declared in this era, whole nations mobilise under systems of virtual compulsion. It may, therefore, be argued that when men leave their neutral home countries (assuming they are not already mobilised there, which, in the vast majority of cases, they are) they are very deliberately associating themselves with a belligerent national cause.
  • 6. There may appear to be an answer to this manner of viewing the question in the curious fact that only two important States (Great Britain and the U.S.A.) have legislated expressly to prevent their nationals joining foreign armies. That argument is fallacious.

    The very change in the character of modern wars which makes it necessary for entire male populations, even of neutral countries, to rally to the flag, renders legislation against taking service with foreign nations entirely superfluous. In this connection one may observe that both Great Britain and the United States still profess a certain respect for the old-fashioned idea of 'voluntary service'.

  • 7. Many countries (probably all States with a conscription law) impose stringent penalties on their male citizens who endeavour to travel abroad during wartime without very special permission. Some countries go a step farther and impose further penalties on such citizens when the purpose of their desertion is that of engaging in a foreign army. These penalties usually apply whether the mother-country is at war or merely neutral.

    A very usual way to deal with cases of desertion for foreign enlistment is that of depriving the guilty person of his nationality. Examples of such legislation may be found in the Roumanian Nationality Law of 1924, and the Yugoslavian Nationality Law of 1929 and other modern codes and, notably, in the French Civil Code (among older codes) where naturalised Frenchmen are made liable to loss of French nationality for the offence of enlisting abroad.

  • 8. On the whole, however, one many conclude by stating that we, in this country, are not likely to be accused of a definite breach of the neutral status which we have taken up, if we continue to allow our citizens to travel to England or Northern Ireland to enlist there in the British Forces. We have, of course, no municipal law against foreign enlistment, such as the British themselves have (the United States legislation does not count as it appears to be more or less in abeyance) and our nationality law does not provide for deprivation of Irish citizenship, even in the case of naturalised persons who virtually forswear allegiance by taking service out of Ireland.

1 Paul Fauchille (1858-1926), authority on international law, author of the four volume Traité de Droit International Public (Paris, 1921-6).

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